Age of Protection – CYFSA Legislation Changes
On January 1, 2018, the Ontario Youth, Child and Family Services Act was amended to increase the “age of protection” to include all children under the age of 18 years. Under these amendments, 16 and 17-year-olds who are in need of protection are now eligible for a full range of child protection services. A key change is the availability of a new voluntary agreement (a “Voluntary Youth Services Agreement” or “VYSA”) for 16 and 17-year-old youth who require an out- of-home placement.
In the Spring of 2018, the Child, Youth and Family Services Act will be repealed and replaced by the Child, Youth, and Family Services Act (CYFSA). In addition to the provisions related to 16 and 17-year-old youth, the new legislation will include provisions expanding the rights afforded to children and young people receiving services under the Act, provisions respecting supports and services to Indigenous children and families, changes to the “best interests” test and the test for access to Crown wards, and provisions related to adoption planning and openness orders. The CYFSA will also introduce changes to terminology; for example, replacing the term “Crown ward” with “child in extended society care”.
The increase in the age of protection has dramatically changed the landscape of services and supports available for vulnerable youth and has required agencies serving youth to develop new systems and approaches. This article will briefly review the range of services now available to this cohort and highlight the roles that will be assumed by different agencies serving youth – including the children’s aid societies, the Office of the Children’s Lawyer (OCL), the Provincial Advocate for Children & Youth (PACY), and child protection ADR service providers.
A children’s aid society that is made aware that a youth may be in need of protection is required to investigate and assess the report. It is important to note that while the new legislation allows professionals and members of the public to report reasonable suspicions that a youth may be in need of protection (without exposure to legal action), the duty to report provision in the Act continues to apply only to matters regarding children under the age of 16. This scheme is intended to reflect the fact that a different approach is required to encourage an older youth’s voluntary participation in services – an approach that respects their confidential relationships with trusted adults, but also allows them to access supports when needed.
If protection concerns are verified, a society may work voluntarily with youth and their families to address the protection concerns at home. However, if a society determines that the youth is in need of protection and cannot remain at home, then a range of other options must be considered, beginning with the least intrusive alternative. At this point, a society must make a referral to the OCL so that, where appropriate, the child may obtain legal advice about the different options. The society must also provide the youth with information about the PACY. This office has a mandate to provide an independent voice for children and youth receiving child welfare services and investigate their complaints.
If a youth cannot remain at home, a society must first explore whether the youth can be cared for by a relative, neighbour, or community member – perhaps under a kinship service or customary care agreement. If these less disruptive courses of action are not available, then a VYSA will be offered to the youth. A VYSA is an agreement between the society and the youth for services and supports to be provided to the youth. The living arrangements for the youth form part of this negotiated agreement, and can include foster care, group care, an apartment, a supported living program, or transitional housing. Other financial and social supports are also identified. A VYSA is a voluntary agreement, and the youth may end it at any time. A society can only terminate the agreement in very limited circumstances, such as where the youth refuses contact with the society, or cannot be located by the society after three months of reasonable attempts to locate the youth.
Notably, youth who have a VYSA in place on their 18th birthday will be eligible for the Continued Care & Support for Youth (CCSY) program, which offers financial and non-financial support through the society from age 18 to 21.
Temporary care agreements, which are made between a society and a parent, are now also available for 16 and 17 year olds.
If a VYSA has been offered by a society and refused by a youth, the society can initiate a protection application. Significantly, a 16/17-year old cannot be “apprehended” and brought to a place of safety without the youth’s consent; rather, the society must seek a court order admitting the child into the society’s care.
Prior to entering into a VYSA with a youth, societies must make a referral to the OCL. The OCL will offer the youth an opportunity to obtain legal advice about the available options and represent the youth if he or she elects to enter into a VYSA. The OCL must also be notified if the youth or the society is considering terminating a VYSA.
As of February 1, 2018, the OCL has received approximately 50 referrals for youths considering VYSAs. A specialized panel of OCL lawyers has been created to provide service to this unique client group. Numerous issues have been raised in these referrals, ranging from immediate housing needs to longer-term support services. These youth may have experienced family breakdown as a result of conflict, a death, sexual identity issues, or many other issues. The OCL is working to rapidly develop best practices in representing these clients. In the short time that these agreements have been offered, they are engaging a cohort of youth who are looking for help but were previously unable to access assistance from a society.
If disagreements arise between a youth and a society, either in negotiating the initial plan or as the plan is carried out, the society is required to inform the youth about the available complaints process and about options to resolve these disagreements – including Alternative Dispute Resolution (ADR). Family group conferencing, child protection mediation, and indigenous approaches to ADR are methods of ADR that are available across the province and are funded by the Ministry of Children and Youth Services. ADR processes share many of the same guiding principles and can be helpful in encouraging the involvement and support of the larger extended network of family, kin and community, broadly defined, to assist the youth in decision-making. If the youth and the society disagree on a particular course of action, ADR may be used to bring the right people together to explore options and develop a plan.
These new legislative changes reflect a modernized approach to working with youth in need of protection. Children’s aid societies, ADR practitioners, OCL lawyers, the Provincial Advocate for Children and Youth, and youth-serving community agencies look forward to continued collaboration to better support youth as they transition to adulthood.
Carolyn Leach has been in-house counsel with the Office of the Children’s Lawyer since 1998. In addition to her own casework, she provides support and supervision to OCL lawyers in Toronto and Northern Ontario who represent children in custody/access and child protection cases. She also co-manages the child protection ADR program at the OCL. In March, Carolyn will begin a secondment to the Ministry of Children and Youth Services. Carolyn.Leach@ontario.ca
Shuah Roskies is in-house counsel with the Office of the Children’s Lawyer and is coordinating legal representation for youth entering into a Voluntary Youth Services Agreement with a children’s aid society. Shuah has also worked as counsel at Legal Aid Ontario and was most recently counsel with the Motherisk Commission. Shuah.Roskies@ontario.ca
Louise Vandenbosch is a social worker and mediator who focusses on conflict resolution in mediation (child protection, family and elder), family group conferencing and parent coaching/counselling. Louise can be reached at Wesbrook Mediation Services at firstname.lastname@example.org